JENNIFER SOWA v. MICHAEL SOWA

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NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1429-16T1


JENNIFER SOWA,

        Plaintiff-Respondent,

v.

MICHAEL SOWA,

     Defendant-Appellant.
___________________________

              Submitted October 31, 2017 - Decided December 5, 2017

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Morris County,
              Docket No. FM-14-1237-13.

              Michael Sowa, appellant pro se.

              Daly   &  Associates,   LLC,   attorneys   for
              respondent (Carolyn N. Daly and Amy Kriegsman,
              on the brief).

PER CURIAM

        Defendant    Michael    Sowa    appeals    from   a   November    3,   2016

Chancery Division order denying his motion for reconsideration.

Defendant requested reconsideration of the Chancery Division's

order dated May 27, 2016, denying his request to modify alimony
and rescinding a previously scheduled plenary hearing.               We affirm

in part and reverse and remand in part.

     Defendant and plaintiff signed a Marital Settlement Agreement

(MSA) finalizing their divorce on November 19, 2013.                   The MSA

required defendant to pay alimony and child support.                   The MSA

provided:

             [I]n the event the husband, who recently lost
             his job as a result of a reduction in
             workforce, does not have another job within
             six (6) months of the entry of the Judgement
             of Divorce he may make an application to the
             court to modify his alimony and child support
             obligations.

In accordance with the MSA, modification of defendant's alimony

or   child    support     obligation      was   contingent    on   defendant's

satisfaction of the criteria set forth in Lepis v. Lepis, 
83 N.J.
 139 (1980).

     Defendant, who was unemployed as of the date of the divorce,

remained     unemployed    for   twenty    months   after    the   divorce   was

finalized. On or about December 24, 2014, defendant filed a motion

to terminate alimony and modify child support.1                On January 9,

2015, a family court judge denied defendant's motion.                The judge

found that defendant had not engaged in the requisite exhaustive


1
   Technically, defendant filed a cross-motion.       However,
plaintiff's motion precipitating the cross-motion is not the
subject of this appeal and is irrelevant to our disposition of
this matter.

                                       2                               A-1429-16T1
job    search    to    substantiate    changed      circumstances,    since    he

"narrowed his job search to positions in his chosen field offering

minimum salaries of $100,000" near Albany, New York.                  Under the

then newly amended alimony statute, the judge concluded that

defendant failed "to explore employment opportunities at any level

in any field" to justify a modification of his alimony obligation.

Similarly,      the    judge   determined    that   defendant's   limited     job

search     efforts      failed    to   demonstrate      substantial     changes

warranting a downward adjustment of child support.                Nor did the

judge deem a reduction in child support to be in the best interests

of the children.        Defendant then moved for reconsideration of the

January 9, 2015 order, which was denied on March 26, 2015.

       In August 2015, defendant filed another motion to terminate

alimony and modify child support.            In that application, defendant

also    sought    to    suspend   life   insurance      and   college   tuition

obligations based on his unemployed status.              However, a few weeks

after filing that motion, on August 26, 2015, defendant began a

new job.

       Two months after he began working, and while his August motion

was pending, defendant wrote to the court to advise that he

obtained full-time employment.           Defendant requested an adjustment

in alimony and child support based on his earning approximately



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$50,000 less than he earned prior to the divorce. Defendant failed

to amend his pending motion based on his new employment and salary.

     On February 26, 2016, another family court judge ruled on

defendant's August 2015 motion.       The judge's statement of reasons

accompanying that order noted that the MSA addressed defendant's

continued unemployment.      Although the judge found that defendant

had filed a partially complete Case Information Statement (CIS)

in support of his motion, based on the parties' conflicting

certifications raising factual disputes, he ordered the matter to

proceed to a post-judgment early settlement panel for review and

disposition.   The judge denied all other requested relief.

     After the post-judgment early settlement panel, the parties

reported to the motion judge.        By order dated May 16, 2016, the

judge scheduled the matter for a plenary hearing in June.                 The

next day, plaintiff's attorney wrote to the judge explaining the

"matter can't be set for a plenary hearing as all of the relief

sought in the motion and cross-motion were denied."           Plaintiff's

attorney   argued   that   since   both   motions   were   denied   without

prejudice, there was nothing pending before the court, and both

sides were required to re-file their motions.                In response,

defendant stated that his motion was not denied and a plenary

hearing should be held.        Plaintiff's attorney countered that

defendant had not met his burden of proving changed circumstances.

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     On May 27, 2016, the judge rescinded his order scheduling a

plenary hearing.          The judge noted that because defendant failed

to establish a prima facie case of changed circumstances, he was

not entitled to a plenary hearing until he met that burden. In

rescinding the order scheduling a plenary hearing, the judge

incorporated his written statement of reasons attached to the

February 26, 2016 order.

     In June 2016, defendant filed a motion for reconsideration

of the May 27, 2016 order.               Plaintiff cross-moved to enforce

litigant's rights and compel payment of arrears.

     On    November        3,    2016,    the        judge   denied    defendant's

reconsideration motion and granted plaintiff's cross-motion for

relief    in   aid   of    litigant's     rights.        The   judge   found   that

defendant's     June      2016   motion       only    argued   that    defendant's

unemployment status entitled him to a modification of his financial

obligations.     Because defendant's first motion, decided on January

9, 2015, requested the same relief as did defendant's June 2016

motion, the June motion was really a reconsideration of the March

26, 2015 reconsideration order.           The judge denied defendant's June

2016 motion finding that "a reconsideration of a reconsideration"

is not permitted. The judge also awarded counsel fees to plaintiff

based on defendant's bad faith.



                                          5                               A-1429-16T1
       On appeal, defendant raises three issues.       First, he argues

that    the   judge     mistakenly   denied   defendant's     motion     for

reconsideration.        Second, he claims the judge erred in deciding

defendant's motion without a plenary hearing.        Third, he contends

the judge improperly awarded counsel fees to plaintiff.

       We defer to a Family Part judge's decision unless the court

has abused its discretion.        See Larbig v. Larbig, 
384 N.J. Super.
 17, 23 (App. Div. 2006).         "An abuse of discretion arises when a

decision is made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis."    Milne v. Goldenberg, 
428 N.J. Super. 184, 197 (App. Div.

2012) (citations omitted).

       Motions for reconsideration are governed by Rule 4:49-2.          The

Rule    requires      that   a   reconsideration   motion    "state    with

specificity the basis on which it is made, including a statement

of the matters or controlling decisions which counsel believes the

court has overlooked or as to which it has erred."          R. 4:49-2.    In

addition, a court may, in its discretion, reconsider a matter "in

the interest of justice."         D'Atria v. D'Atria, 
242 N.J. Super.
 392, 401 (Ch. Div. 1990).        Reconsideration is reserved for those

limited circumstances in which the court's decision was based upon

a palpably incorrect or irrational basis, or the court failed to

consider the significance of probative, competent evidence.              Id.

                                      6                           A-1429-16T1
Reconsideration is not appropriate "merely because a litigant is

dissatisfied with a decision of the court."                  Palombi v. Palombi,


414 N.J.   Super.   274,   288    (2010).       Nor   is    reconsideration     a

mechanism for "unhappy litigants [to] attempt once more to air

their positions and relitigate issues already decided."                      Michel

v. Michel, 
210 N.J. Super. 218, 224 (Ch. Div. 1985).

      Defendant's     original     motion   to    modify     alimony   and    child

support was denied by order dated January 9, 2015. Reconsideration

of that order was denied on March 26, 2015.                     In August 2015,

defendant filed a motion for modification of alimony and child

support substantially similar to his original modification motion.

The August motion set forth the same facts in support of downward

modification of defendant's support obligations as proffered in

defendant's original motion.          Significantly, defendant procured

employment after filing his August modification motion but did not

seek to amend his pending motion.                Further, defendant's August

motion failed to provide a complete CIS in accordance with Rule

5:5-4.2   Thus, defendant's June 2016 motion sought reconsideration

of his August 2015 motion, which sought the same relief on the

same grounds as both the December 2014 motion and the first

reconsideration motion.


2
  Defendant's CIS attached to his August motion did not include a
tax return with W-2, 1099s, or paystubs.

                                       7                                 A-1429-16T1
     We agree with the motion judge that defendant's motion was

an improper reconsideration of an earlier reconsideration order.

Defendant failed to set forth evidence that the judge's reasoning

was plainly incorrect or that the judge failed to consider relevant

evidence.    Moreover, as a result of defendant's failure to file a

complete CIS with his August 2015 modification motion and provide

information substantiating his new salary, we find the judge

properly denied defendant's August 2015 motion.

     Next, defendant argues that he was entitled to a plenary

hearing in connection with his August 2015 motion.                  Plenary

hearings are only required when "a prima facie showing has been

made that a genuine issue of fact exits bearing upon a critical

question."     Bisbing v. Bisbing, 
445 N.J. Super. 207, 216 (2016)

(citations omitted), aff’d in part, 
230 N.J. 309 (2017).            Plenary

hearings may not be necessary if the family court is "familiar

with the parties through extensive motion practice."          Id. at 213.

     We agree with the judge that defendant failed to make a prima

facie showing of substantial changed circumstances warranting a

plenary   hearing   on   defendant's   motion   to   reduce   his   support

obligations.     Defendant merely reargued his original motion for

modification of alimony and child support without raising new

facts.    A significant new fact was defendant's employment as of

August 2015, yet defendant did not provide this information as

                                   8                                A-1429-16T1
part of his August motion.         Under the circumstances, the judge,

who reviewed the file, including the documents related to the

January 9, 2015 and March 26, 2015 orders, and met with the parties

in   May   2015   after   the   post-judgment     early   settlement     panel,

correctly observed that defendant failed to demonstrate changed

circumstances.

      Lastly, defendant argues that the award of counsel fees to

plaintiff was improper as the judge failed to articulate findings

in support of the awarded fees.           A court must clearly state "its

factual    findings   and   correlate     them   with   the   relevant    legal

conclusions."      Curtis v. Finneran, 
83 N.J. 563, 570 (1980); see

R. 1:7-4. Without such findings, it is impossible for us to decide

whether    the    determination   below    is    supported    by   substantial

credible proof on the record.        See Mol v. Mol, 
147 N.J. Super. 5,

9 (App. Div. 1977).         A recitation of the factors for awarding

counsel fees is insufficient.        Grayer v. Grayer, 
147 N.J. Super.
 513, 516 (App. Div 1977).

      The judge awarded counsel fees to plaintiff based upon his

finding that defendant acted in "bad faith."                  While the judge

listed the factors that he considered in awarding counsel fees,

he did not set forth any specific findings as to why or how

defendant acted in bad faith.        Nor did the judge explain how the

factors he considered in awarding counsel fees applied in this

                                      9                                A-1429-16T1
case.   As such, we are required to remand this issue to the judge

to set forth his factual findings and correlate them with the

relevant law to support the award of counsel fees to plaintiff.

     Affirmed as to denial of defendant's motion to modify alimony

and child support without a plenary hearing. Reversed and remanded

as to the award of counsel fees to plaintiff.    We do not retain

jurisdiction.




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